Goldmann, Foley and Collester.
This is a child trespasser case which was tried to a jury in the Law Division. The jury awarded damages in the amount of $25,000 to the infant plaintiff for his personal injuries; his parents were awarded $10,000 for consequential damages.
The theory of liability pleaded by plaintiffs accorded with Restatement, Torts, § 339 (1934), the principles of which are now firmly embedded in the law of this State. See the line of cases commencing with Strang v. South Jersey Broadcasting Co., 9 N.J. 38 (1952).
The defense was bifurcated. Defendant denied its liability upon plaintiffs' pleaded theory and also contended that it was immune from liability by reason of R.S. 48:12-152 which provides in part:
"Any person injured by an engine or car while walking, standing or playing on a railroad or by jumping on or off a car while in motion shall be deemed to have contributed to the injury sustained and shall not recover therefor any damages from the company owning or operating the railroad."
The statement of facts as presented by plaintiffs is as follows: "On April 9, 1961 the plaintiff, Anthony Jasiczek, who was born June 21, 1946, and was then age 14 trespassed from a public park in Jersey City through a hole in a fence onto certain property belonging to the defendant Pennsylvania Railroad. The plaintiff then boarded a Pennsylvania
Railroad train. He intended to get off this train at Journal Square, but it was moving too fast and he remained on it until he reached the Hackensack River Bridge. As the train approached the Hackensack River Bridge, these boys were observed by the rear brakeman Mr. Keller as he went out for a breath of air. Keller, after yelling at the youths, pulled the emergency, stopping the car on which the plaintiff was riding directly under a low high-voltage wire. The presence of this low wire was known to the brakeman. While the car was in a stopped position the plaintiff started crawling a distance of five to ten feet over the running board of the car he was on. This running board is a couple of inches higher than the car. The plaintiff was observed by Keller hunching his back up and coming in contact with the low lying high-voltage wire. The members of the train car universally had observed children playing on the trackage involved, there was an absence of warning signs present, relating to the low high-voltage wire with which plaintiff came in contact. As a result of coming in contact with the aforesaid wire, the plaintiff suffered injuries necessitating the amputation of the right foot below the knee, and the amputation of the two last toes of the left foot, skin grafts to the left foot, back, right hip, right shoulder, with skin being removed from the thigh and the chest wall for grafts, breakdowns and infection of the grafted areas."
Defendant in its brief expresses agreement with the foregoing statement except, it states, that there was evidence of the presence of warning signs along the trackage. For the purposes of the present appeal we deem this reservation to be inconsequential.
At the conclusion of the evidence defendant moved for a judgment of involuntary dismissal. In the ensuing argument defendant relied mainly upon R.S. 48:12-152, supra, but argued also that the plaintiffs had failed to prove common law liability under § 339 of the Restatement, supra. The trial court reserved decision on defendant's motion and submitted to the jury the questions of whether R.S. 48:12-152 exonerated
defendant under the facts of the case and, if not, whether the proofs were such as to discharge the defendant of common law liability. In the latter connection the charge of the court was clear and comprehensive.
After the verdict defendant moved for judgment n.o.v. under R.R. 4:55-2. Alternatively, defendant moved for a new trial upon the ground the verdict was against the weight of the evidence. Plaintiffs moved for a new trial as to damages only, contending that the ...